THE NORTHERN SEA ROUTE AND A REMINDER ON THREE IMPORTANT ASPECTS OF ENGLISH MARINE INSURANCE LAW

17 Мар

Очевидно, что Северный мор­ской путь может стать серьезным конку­рентом традиционным маршрутам. У ре­гиона, тем не менее, есть свои особенности: суровые погодные условия, низкие температуры, отсутствие достаточной инфраструк­туры. В ближайшее время предполагается активизация деятельности в сфере перевозок грузов в связи с добычей природных ресурсов на арктическом шельфе. Все участники рынка морского страхования должны быть готовы к этому. Авторы рассматривают некоторые аспекты английского института морского страхования, которые были освещены в решении по делу, рассмотренному Верховным Судом Соединенного Королевства, – The Cendor Mopu, которое имеет значение прецедента.

Global Process Systems Inc v Syarikat Takaful Malaysia Berhad (the Cendor Mopu)

In common with the Marine In­surance Act 1906 (the Act), Clause 4.4 of the Institute Cargo Clauses (A) excludes loss caused by inherent vice of the cargo. The classic English law definition of in­herent vice was given by Lord Diplock in an Ince & Co case, Soya GmbH Mainz Kommanditgesellsc­haft v White:

“It means the risk of deteriorate tion of the goods shipped as a re­sult of their natural behaviour in the ordinary course of the contem­plated voyage without the inter­vention of any fortuitous external accident or casualty”.

The Cendor MOPU rig had been insured as cargo, on All Risks ICC (A) 1982 conditions, for a dry tow from Gulf of Mexico to Malaysia. The weather during the voyage was not outside the range of what could be expected. During the transit the rig’s legs cracked and fell off one by one. The judge (Mr Justice Blair) concluded the loss was highly probable given the legs’ fatigued condition, though not inevitable. He therefore asked what the proximate cause of the loss was. Given the sea conditions (which were at the rougher end of what could be expected) the judge held that the proximate cause of the loss was the inherent vice of the fatigued legs an excluded cause under Clause 4.4.

The rig owners appealed and the Court of Appeal overruled Blair J., concluding that the proximate cause of the rig loss was an insured peril, specifically a peril of the seas. It decided that the evidence indicated there must have been a legbreaking wave which caused the critical first leg to sheer off. That was a fortuity in the form of a peril of the seas, so it allowed the appeal. The insurer appealed to the Supreme Court, still arguing for a finding that inherent vice was the proximate cause. That appeal was rejected. Moreover, the Su­preme Court took a narrower view of the inherent vice exception than either of the lower Courts.

The five Justices of the Supreme Court agreed with the Court of Appeal that on a common sense analysis, the fortuitous leg brea­king wave had been the proximate cause of the loss. That was a peril of the seas and therefore covered, subject to the effect of the inherent vice exclusion. Central to the deci­sion on that question is their una­nimous agreement that the inhe­rent vice exception – whether it ari­ses under s. 55(2)(c) of the Marine Insurance Act or under Clause 4.4 – can apply only where there has been no intervention of any fortui­tous external accident. Putting the matter the other way, for the inhe­rent vice defence to succeed, the natural behaviour of the goods must be the sole cause of the loss.

Therefore, as Lord Clarke su­ccinctly put it, under All Risks cover there is a “critical distinc­tion” to be made between “da­mage caused by an external for­tuity and damage resulting solely from the intrinsic nature of the in­sured goods”.

In the Supreme Court’s view the trial judge had been wrong, when finding there had been inherent vice, to consider the severity or li­kelihood of the weather condi­tions. If the critical leg breaking wave itself was a fortuity and not inevitable, that was enough to con­stitute a peril of the seas provided it caused loss. Because of that cau­sative fortuity – no matter how probable it might have been in the likely weather conditions – the in­trinsic nature of the goods could not be said to be the sole cause of loss and there could be no finding of inherent vice as the proximate cause.

The decision has provoked plenty of comment and, in our view, impacted three aspects of importance in marine insurance.

Scope and Meaning of Inherent Vice

The inherent vice exclusion in the popular 1982 ICC (A) clauses is replicated in the 2009 clauses. Under both sets of clauses, it is now clear that the intrinsic nature of the goods must be the sole pro­ximate cause of loss for inherent vice to apply. Under both, if the only proximate cause of the loss is an external fortuity, inherent vice has no role.

All Risks Cover

The assured’s initial burden of proof on an All Risks cover rema­ins a relatively low one. No matter how probable the loss may be, if the assured can still point to a cau­sative fortuity which is not exclu­ded, an All Risks cover should, in principle, respond. If insurers are faced with situations where the risk of intrinsic failure, on its own or in conjunction with other pe­rils, is high, either the premium may need reconsideration or. more bespoke exclusions may be ne­eded.

Perils of the Sea

The judgment is also a useful re­minder about the scope of “perils of the sea”. The sea conditions need not be exceptional, extreme, nor unforeseeable to provide the basis on which a fortuitous peril is found; it is the impact the condi­tions have on the insured interest which matters. Lord Clarke re af­firmed the decision in the Miss Jay Jay, i.e. “it is not the state of the sea itself which must be fortuitous but rather the occurrence of some acci­dent or casualty due to the condi­tions of the sea”.

Summary

The Cendor MOPU decision is im­portant for insurers who may be involved in the insurance of rigs or other infrastructure being towed through the Northern Sea Route where sea conditions can be un­predictable. Rigs often have to be towed to their final position and so they are particularly exposed to the perils of the sea. The impact of ice or floating ice on rigs may also be a relevant consideration. Such impacts should not ordinarily cause damage to a rig during transit but there is scope for an ac­cident or casualty due to unexpec­tedly large floating ice even where icebreakers are deployed.

The Cendor MOPU decision strengthens the position of the as­sured because the old test of inhe­rent vice – namely an inability to withstand foreseeable and expec­ted voyage conditions – is no lon­ger correct. The new test is whet­her the intrinsic nature of the goods is the sole proximate cause of the loss. It would appear there­fore that all the assured has to do is to establish that there was an ac­cident or casualty due to the sea conditions which caused or contri­buted to the loss. The impacts of large chunks of floating sea ice might be enough to establish this.

It remains to be seen if the Northern Sea Route will gain popularity, but with the developments of the Arctic oil and gas resources it seems that there is potential for the transit of rigs and other infrastructure in sea conditions exposed to the risk of sea ice. Insurers may wish to consider if it would be appropriate to insure such cargos on All Risk terms or they may wish to reconsider the premiums to be charged.                                                ■

1 [2011] UKSC5

2 [1983] 1 Lloyd’s Rep 122

3 [1987] 1 Lloyd’s Rep 32

Авторы: Nick BURGESS, Jams RUSTAMBEKOV

Источник: Морское страхование. – 2013. – № 1. – С. 56 – 59.